1. The petitioner in this case has been convicted of an offence under the Calcutta Municipal Act and this Rule has been granted on one ground only, that the prosecution is barred by Section 631 of the Calcutta Municipal Act.
2. The petitioner was prosecuted on a complaint dated the 11th May 1920. The complaint alleges that the accused has about the 5th September 1919 committed an offence under Section 574/466 of Act III B.C. of 1899 or Bye-law by keeping and using an unlicensed workshop at 23 and 24, Nilmoney Mullick Lane, for manufacturing articles of iron for the purpose of trade. Section 631 of the Act, omitting portions irrelevant to the present ease, provides that no person shall be liable to punishment for his act, unless the complaint of such offence is made before the Magistrate within three months next after the commission of such offence. Therefore, on the face of it this complaint of an offence committed on the 5th September 1919, and laid on the 11th May 1920, was barred under the provisions of Section 631, The view of the learned Additional Sessions Judge appears to have been that as the accused is still carrying on his iron workshop without license, no point of limitation can arise. But it appears to us that when the prosecution in making their complaint have selected a definite date on which they allege the offence has been committed, the accused cannot be convicted of committing a similar offence on a subsequent date to which no reference has been made in the complaint. The present case is a summons case and though no charge was necessary, the accused should have been asked to answer the allegation that he committed an offence on a later date before he could be convicted of that offence.
3. It is contended on behalf of the Municipality that Section 246, Criminal Procedure Code, enables the Court to convict an accused of an offence different from that stated in the complaint. We do not think that that section can be held to mean that the accused in a summons case can be convicted of an offence alleged to have been committed on a date to which no reference had been made in the complaint or summons. It is suggested that the accused has really been convicted of the continuing offence of keeping and using an unlicensed workshop during the year ending 31st March 1920. But this is neither the offence which he was alleged to have committed, nor one which has been found either by the trying Magistrate or by the Appellate Court to have been committed, On the case as instituted, we hold that the accused was not liable to be punished for the offence stated in the petition of complaint since that complaint was lodged more than three months after the alleged date of offence.
4. We accordingly make this Rule absolute, set aside the conviction of the petitioner and direct that the fine, if paid, be refunded.